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COA rules against bank in dismissed $19K collection case

April 17, 2019

A bank that sued a customer but failed to act until after the case was dismissed almost a year later failed to provide sufficient evidence to the Indiana Court of Appeals that the dismissal should be set aside.

In April 2017, Bank of America, N.A. filed a civil complaint against Kimberly Congress-Jones alleging she owed more than $19,300 in unpaid credit card debt. By the end of 2017, the bank had taken no action in the case, and Jones filed a motion to dismiss for its failure to prosecute.

When Jones appeared pro se for the dismissal hearing in February 2018, the bank was a no-show, and the trial court ultimately granted Jones’ motion to dismiss. At that point, the bank had failed to file anything on the docket for more than 10 months.  

In March 2018, counsel for the bank filed a motion to set aside the order of dismissal. The motion was denied by the trial court, which upheld its earlier decision in favor of Jones.  

On appeal, the bank argued the trial court erred in granting Jones’ motion to dismiss, as well as in denying the bank’s motion to set aside the dismissal. However, the Indiana Court of Appeals affirmed the trial court’s judgment in Bank of America, N.A. v. Kimberly A. Congress-Jones, 18A-CC-1087, noting the bank’s failure to provide sufficient evidence as to the lengthy delay in its response.

First, the appellate court noted that insufficient evidence existed to prove that the bank’s initial representation — Blatt, Hasenmiller, Leibsker, & Moore, LLC — had dissolved or withdrawn from the case. It also found little evidence in the record to demonstrate when the bank hired its second counsel, Lloyd & McDaniel, and why similar delays in filing continued.

“None of the delay can be attributed to Jones or reflected on her,” Senior Judge Carr Darden wrote for the panel.

The appellate court further disagreed with the bank’s assertion that a letter sent to Jones’ counsel by Lloyd & McDaniel was proof “that Lloyd was now representing [the Bank] and intend[ed] to proceed” in the case.

Noting that the amount of prejudice to Jones appeared to be high, the appellate court pointed out that in comparison to the bank, Jones appeared to be unable to afford to hire another attorney to defend her in the lengthy lawsuit, resulting in her pro se appearance. It thus concluded the trial court did not abuse its discretion and had ample reason to grant Jones’ motion to dismiss. 

Finally, the appellate court found the bank failed to demonstrate prima facie error in the denial of its motion to set aside that dismissal order when it concluded the bank failed to include any of Jones’ answers to its demands for payment prior to the suit.

“In addition, the Bank cites to no rule demonstrating that Jones was barred from serving her discovery requests upon the Bank, and its attorneys had ample opportunity to object to the timing or nature of the requests when they were served,” Darden continued.

“The Bank also could have requested an extension of time to respond while it switched law firms. In any event, the Bank’s choice to ignore Jones’ discovery requests was merely one factor in the Bank’s inactivity in this case.”

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